Although land use and zoning issues can also affect agriculture in rural areas throughout New York state, an urban or suburban farmer should carefully review the zoning code. According to Dean Patricia Salkin at Touro Law Center in the “Counseling the Local Food Movement” webinar with the American Bar Association, there are several zoning mechanisms that can be used to promote small-scale agriculture production within city limits:
Comprehensive Plan: As noted above, this is the over-arching plan upon which land use regulations are implemented. It sets forth the purposes and goals of the land use regulation in that county. It is important that the comprehensive plan itself emphasize the importance of small-scale commercial agriculture production within the city limits and the promotion of locally grown food and home-based food processing.
Zoning Ordinances: If various types of urban agriculture and agri-tourism (or agri-tainment) are not addressed in the zoning ordinances/code, local governments may amend existing provisions allowing for same. Common restrictions in zoning ordinances include road setbacks, lot size, dimensions, signage size and placement, site plan requirements, screening, etc.
Definitions: Local governments may consider adding/clarifying definitions used with urban agriculture such as “rooftop garden,” “community garden,” “green roof,” “small scale urban agriculture,” “animal harvesting facility,” “food distribution facility” etc. (or whatever the appropriate terms are for that locality) to ensure that the definitions are clear to the community.
Uses Allowed “As of Right”: Zoning ordinances typically describe the permitted uses, as of right, within a given district. As such, food production should be prescribed within certain districts as a matter of right.
Accessory Uses: Accessory uses are incidental to the primary use of the building on which they are located. For example, a rooftop garden on a residential building in Brooklyn would be an accessory use. Local governments can amend zoning laws to allow small-scale production agriculture as an accessory use.
Special Use or Conditional Use Permits: Some local governments allow for small scale agriculture production through special use or conditional use permits. Such uses are not allowed “as of right.” Instead, they are subject to additional review by the local zoning board or legislative body.
Overlay Districts: An overlay district may be used as a mechanism to preserve certain areas (e.g., historic area, hazard prevention) or to promote certain types of urban/suburban agriculture.
Home-Based Business Regulations: Zoning ordinances may have an allowance for small-scale home-based food processing (cottage food operations) at residential locations and on-site farmstands.
Cities that allow for the use of backyard chickens may place specifications on the following: (1) number of hens, (2) setbacks for coops/pens, (3) number of roosters (if allowed at all), (4) neighbor consent, (5) pest control, and (6) feed storage. Local zoning ordinances that allow for urban apiaries may post regulations for the lot size and setbacks.
This is an excerpt from my first book that I co-authored with Pat Dillon, an Iowa agriculture lawyer titled “Field Manual: Legal Guide for New York Farmers and Food Entrepreneurs” available on CreateSpace, Amazon, Kindle and iBooks. You can find out more about this book here